R.Z. by parent B.Z. v. Cincinnati Public Schools et al

Filing 28

MEMORANDUM OPINION AND ORDER denying #16 Plaintiff's Motion for Expedited Discovery. Defendants and Plaintiff shall file their Rule 26(f) report as soon as possible, not later than 5/5/2021. Signed by Magistrate Judge Stephanie K. Bowman on 4/26/2021. (km)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
R.Z., by his/her parent B.Z.,
Plaintiff,

Case No. 1:21-cv-140
McFarland, J.
Bowman, M.J.

v.
CINCINNATI PUBLIC SCHOOLS, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Through counsel on March 1, 2021, Plaintiff R.Z., by his/her parent B.Z.,1 filed a
complaint against multiple individual and institutional Defendants (hereinafter “the School
Defendants”). (Doc. 1). Pursuant to Plaintiff’s requests, summonses were issued on the
complaint on March 2, 2021. (Docs. 3-14). On March 3, 2021, Plaintiff filed a motion
seeking “expedited discovery” along with a separate “emergency motion for protective
order.” (Docs. 16, 17). Although the latter motion has been resolved, the motion for
expedited discovery remains pending and is now ripe. For the following reasons, the
motion will be denied.
I.

Background

The complaint alleges that the School Defendants have failed to provide R.Z. with
a free appropriate public education (“FAPE”) during a period of time in which Walnut Hills

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For the Court’s convenience, the Court will use the pronoun “their” in this Order.

High School was operating at 100% remote learning as a result of the Covid-19
pandemic.2 Plaintiff alleges that Defendants’ failure to provide R.Z. with an adequate
FAPE results in violations of the Individuals with Disabilities Education Act “(IDEA”), 20
U.S.C. §1400 et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794
(“Section 504”), the Ohio Individual with Disabilities Education Improvement Act
(“OIDEIA”) and the Ohio Education of Children with Disabilities Law, Ohio Rev. Code
Chapter 3323 (“Ohio Education Law”) (collectively the “Education Laws”), as well as a
violation of 42 U.S.C. § 1983. (Doc. 1 at ¶1).
Within days of Plaintiff filing their complaint and motions, the undersigned set a
telephonic hearing, conditioned on Plaintiff notifying defense counsel of the time and date
to ensure their participation. (Doc. 19).

Coincidentally, the record reflects that all

Defendants were served with the complaint on March 9, the date of the scheduled
hearing.

(See Docs. 22, 23).

That same date, defense counsel3 filed a written

memorandum in opposition to Plaintiff’s motions and appeared at the telephonic hearing.
At the hearing, the parties agreed to submit an agreed protective order to the Court, which
the Court subsequently filed of record. (Doc. 21). The agreed order mooted Plaintiff’s
emergency motion for a protective order.
On March 19, 2021, the Court filed a “Consent Entry and Order to Stay,” in which
the parties further agreed to stay proceedings for 30 days in order to allow them to pursue

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According to public records, Walnut Hills recently resumed in-person learning for all interested students.
Jeremy Neff filed a formal Notice of Appearance as well as the Memorandum in Opposition to Plaintiff’s
motions. (Docs. 24, 20). Mr. Neff, Dan Hoying and Stephanie Scott all appeared at the March 9 hearing.
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resolution of the underlying issues outside of court. The stay expired automatically on
April 18, 2021. On April 19, Plaintiff filed a reply memorandum in support of the stillpending motion for expedited discovery. On April 22, Defendants filed a motion to dismiss
in lieu of an answer. Because a responsive pleading has just been filed, the parties have
not yet filed a discovery plan under Rule 26(f), Fed. R. Civ. P.
II.

Analysis

Pursuant to Rule 26(d)(1), Fed. R. Civ. P., “[a] party may not seek discovery from
any source before the parties have conferred as required by Rule 26(f), except ... when
authorized by these rules, by stipulation, or by court order.” Courts considering motions
for expedited discovery require the moving party to satisfy a “good cause” standard.
Lemkin v. Bell's Precision Grinding, No. 2:08-cv-789, 2009 WL 154731, at *2 (S.D. Ohio
June 2, 2009) (additional citation omitted). Here, Plaintiff seeks expedited discovery on
grounds that if R.Z. is required to abide by standard discovery rules, “then compensatory
services during the current school year could be forever lost.” (Doc. 16 at 1). The
undersigned concludes that Plaintiff’s asserted reason for seeking expedited discovery,
prior to the filing of Defendants’ answer or the parties’ the Rule 26(f) meeting, does not
constitute “good cause” to expedite discovery at this time.
The cases on which Plaintiff relies are distinguishable; almost none involve the
type of IDEA claims at issue here. For example, in Lemkin v. Bell’s Precision Grinding,
No. 2:08-cv-789, 2009 WL 1542731 (S.D. Ohio June 2, 2009), the court explained that
“good cause” for expedited discovery “is often found in cases alleging infringement, unfair

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competition, or where evidence may be lost or destroyed with time.” Id. at *2 (emphasis
added).

Although the underlying claim in Lemkin was precisely the type of patent

infringement claim that supports expedited discovery, the court still limited the expedited
discovery to the narrow issue of personal jurisdiction, on which the defendant had moved
to dismiss. Id. at *3.
Other cases cited by Plaintiff involve very limited expedited discovery in advance
of a hearing scheduled on a pending motion for TRO or for a preliminary injunction.
Plaintiff suggests that their expedited request should be granted “[i]n order to fully and
completely prepare for any potential interim equity relief relating to compensatory services
for R.Z,” (Doc. 16 at 3), but Plaintiff has filed no motion for a temporary restraining order
or for preliminary injunctive relief. In one of the cases relied on by Plaintiff, El Pollo Loco,
S.A. de C.V. v. El Pollo Loco, Inc., 344 F. Supp.2d 986, 991 (S.D. Tex. 2004), the court
denied a motion for expedited discovery when the plaintiff had not yet filed any type of
motion for preliminary injunctive relief, but sought to expedite discovery in part for a
“possib[e]” motion for injunctive relief. Compare, e.g., Hydropartners, LLC v. Econergy
Energy Generation Ltd., No. 1:08-cv-819, 2008 WL 1775411 (N.D. Ohio April 16, 2008)
(after motion for preliminary injunction was filed, allowing limited and narrowly tailored
discovery targeted to the issues to be presented at the hearing on that motion); Hausser
Taylor LLC v. RSM McGladrey, Inc., No. 1:07-cv-2832, 2007 WL 2778659 (N.D. Ohio
Sept 21, 2007) (although the court denied plaintiff’s TRO motion, after new allegations of
bad faith arose at the hearing on that motion, the court permitted three days of expedited

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discovery to allow plaintiff to seek further support for a request for preliminary injunctive
relief).
In their response in opposition to the motion for expedited discovery, the School
Defendants argue that Plaintiff cannot establish good cause for expecting discovery in
this case because Plaintiff did not attempt to satisfy the mandatory administrative
exhaustion requirement under the IDEA prior to filing this suit.4 (Doc. 1 at ¶¶ 12, 14,
asserting that administrative exhaustion would be futile). In addition to disputing Plaintiff’s
allegations that exhaustion would be futile, Defendants point out that under Ohio Adm.
Code 3301-51-05(k)(15)(a), due process hearings are held on a fast-tracked basis with a
final decision to be reached within 45 days. Defendants maintain that if Plaintiff had
engaged in an IDEA due process hearing, there would be no need for expedited discovery
because the hearing officer is empowered to issue subpoenas for witnesses and records,
and all evidence must be disclosed at least five business days prior to the hearing. See
Ohio Adm. Code 3301-51-05(K)(11)(a)(3) and (K)(12)(c).
Although Defendants have now filed their motion to dismiss on the same basis, on
April 19 when Plaintiff filed their reply memorandum, Plaintiff argued that “[a] non-existent
motion to dismiss for failure to exhaust administrative remedies is no justification to delay
or stay discovery.” (Doc. 26 at 3). See generally, Ohio Bell Telephone Co., Inc. v. Global
NAPs Ohio, Inc., 2008 WL 641252, at *2 (S.D. Ohio Mar. 4, 2008) (denying motion to stay

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In the reply memorandum, Plaintiff cites to a single IDEA case, Cabrera v. Board of Education of
Albuquerque Public Schools, 2021 WL 131460, at *2 (D.N.M. Jan. 14, 2021). But Cabrera involved a
plaintiff who filed a federal action after exhausting his IDEA due process hearing rights. In addition, Cabrera
addressed the defendant’s motion to stay ordinary discovery, not a plaintiff’s motion for expedited discovery.

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discovery based on a motion to dismiss that defendants waited 13 months to file, but
explaining that if the likelihood of a jurisdictional dismissal were high, the Court might be
persuaded to grant a stay of discovery). Unlike in Ohio Bell, however, Defendants cannot
be faulted for failing to file a motion to dismiss before their time for filing a responsive
pleading had expired. Notably, Plaintiff filed the motion for expedited discovery before
serving them with the complaint.
The only motion that is ripe - for expedited discovery - requires Plaintiff to establish
good cause for circumventing the normal litigation process in favor of an extremely
expedited procedure. Plaintiff has not carried this burden. Rule 26(f), Fed. R. Civ. P.,
sets forth a very complete list of topics to be covered by counsel during their “meet and
confer” process, which list easily encompasses the subject matter of the abbreviated and
shortened discovery parameters requested by Plaintiff in their reply memorandum. In
addition, Rule 26(d)(2) would have allowed Plaintiff to serve early Rule 34 requests even
before the parties conduct their Rule 26(f) conference.
While Plaintiff’s motion for expedited discovery has been pending, all parties
agreed to a 30-day stay during which R.Z.’s parents consulted with R.Z’s teacher and
members of the 504 team from Walnut Hills and obtained a significant amount of
information concerning R.Z.’s claims. Also during the stay, Walnut Hills resumed inperson learning. Plaintiff’s willingness to enter into the 30-day stay, and the information
gleaned during that time, suggest that further expediting discovery in advance of the Rule
26(f) conference is not necessary. Rule 26(f) directs the parties to formulate a discovery

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plan “as soon as practicable.” In order to speed completion of the Rule 26(f) process, the
undersigned will direct the parties to file their Rule 26(f) report by a date certain.5
III.

Conclusion and Order

For the reasons stated, IT IS ORDERED THAT:
1. Plaintiff’s motion for expedited discovery (Doc. 16) is DENIED.
2. Defendants and Plaintiff shall file their Rule 26(f) report as soon as possible,
not later than May 5, 2021.

Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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If Plaintiff desires an expedited decision on the motion to dismiss, Plaintiff is encouraged to file their
response in opposition as soon as possible, without awaiting the full time permitted by the rules. However,
at this time, the Court will not mandate expedited briefing.

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